South Carolina's electric cooperatives say Santee Cooper is slowing down a major lawsuit about who should pay for the failed Midlands nuclear project by asking the Supreme Court to take it up straight away.
The co-ops, which buy the majority of the electricity generated by the Moncks Corner-based utility, say they'd rather have a lower court take up the case first so lawyers can piece together the facts of what happened to the project.
The co-ops say Santee Cooper's legal wrangling serves to delay that process in what’s sure to be an immensely complicated case. Santee Cooper, for its part, has said it wants the Supreme Court to resolve the case as soon as possible to clear the legal cloud hanging above it.
"If Santee Cooper truly desires a prompt resolution of this case, then Santee Cooper should stop delaying the underlying suit with ever-changing tactical maneuvers and proceed with litigation (in a lower court)," the cooperatives wrote Wednesday.
Santee Cooper, meantime, says it's "hardly a delay tactic" to take the case straight to the state's highest court, especially since the such a high-profile case is probably headed there eventually.
"It's an important issue that needs to be resolved and will likely ultimately be there anyway," Santee Cooper spokeswoman Mollie Gore said Wednesday. "Taking it directly to the Supreme Court probably cuts years out of the process."
The case hinges on a basic question with big-money implications: Do electricity users have to pay for a power plant if it never generates power?
The answer to that question will determine who pays for Santee Cooper's $4 billion share of the failed expansion of the V.C. Summer Nuclear Station. The electric co-ops, which sell power to nearly 800,000 homes and businesses, are currently on the hook for about $3 billion of that sum.
In legal arguments filed Wednesday, the cooperatives say they shouldn't have to pay. Santee Cooper gave up on its plans to build the two nuclear reactors north of Columbia last summer, and the co-ops argue that state law only requires ratepayers to cover construction bills for power plants that are in service.
What's more, they say, the Legislature has a history of telling utilities when they can charge for unfinished projects. It passed a law allowing SCANA Corp., Santee Cooper's partner in the failed V.C. Summer expansion, to charge for an abandoned project, for instance, but it never took that step for Santee Cooper itself.
"It's abundantly clear that Santee Cooper's latest legal maneuver is not about protecting ratepayers," the cooperatives said in their filing Wednesday. "It's about protecting Santee Cooper, its investors and the status quo."
Santee Cooper has said that it reads the law differently. When the Legislature created it as a state-owned utility, it says, it was given the right to charge users what it needed to stay current on its debt.
The dispute over whether bondholders or ratepayers should cover the V.C. Summer project mirrors questions hanging over SCANA.
SCANA, which owned the majority of the unfinished reactors, has been challenged over its portion of the costs in the Legislature, the courts and the state's utility commission. The project eats up nearly a fifth of the Cayce-based company's electricity rates, but ratepayers and lawmakers have sought to make its shareholders foot the bill.
"This thought that investors outrank ratepayers — that hasn't gone far for SCANA," said Mike Couick, chief executive of the Electric Cooperatives of South Carolina, a trade group. "What's the difference for Santee Cooper?"
The co-ops are suing through the Central Electric Power Cooperative, which buys electricity and parcels it out to individual utilities, and their case is currently being considered alongside several others connected to the nuclear project.
It isn't clear when the Supreme Court will decide whether or not to take the case up directly.